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June 3, 2009

California appellate court upholds 27-year three-strikes sentence for DUI offense

A helpful reader, perhaps aware of my concern that many drunk drivers do not get harsh enough sentences, forward to me this local article from California reporting on the affirmance of a very harsh DUI sentence.  Here are some of the details:

A state appellate court has upheld a long sentence for a Lincoln man convicted of driving under the influence. Jeffrey Charles Wren, 38, of Lincoln, had appealed a 27-year sentence for DUI after his conviction in 2008 by a Placer County jury.

A Placer County prosecutor, however, says that though the sentence is severe, it is proper. Wren has a long record of criminal offenses and DUI convictions. He was given the long prison stretch under the state's "three-strikes" felony sentencing guidelines. "Based on his repeated criminal conduct, he posed a great danger to society with his drinking and driving," said Todd Kuhnen, Placer County deputy district attorney.

Wren argued that one of two previous strikes on his criminal record should not be counted and that the long prison sentence was unconstitutional because it represented cruel and unusual punishment for drunken driving.  But the Third District Court of Appeal stated in its opinion that Wren had three prior convictions for DUI, that he was out on bail when his last offense occurred and that he was convicted in 1991 on two felony counts of child molestation.

A news release from the Placer County District Attorney's Office recounted Wren's lengthy record, starting with a 1992 incident where he was found drunk in the restroom of a Folsom restaurant, a loaded gun in his pocket. While that case was pending, he violated probation by fleeing the state. Wren then was apprehended in 1995 in Montana for DUI and received an eight-year prison sentence. In 2000 he failed to register as a sex offender and in the next two years violated parole for alcohol-related reasons. He also was convicted of DUI in 2003, 2004 and 2006. In 2006 he was arrested on a felony charge of possessing methamphetamine. He was free on bail when he was arrested by the California Highway Patrol near Lincoln for driving under the influence.

With three prior DUI convictions within 10 years, the new charge was a felony.  Also, his prior strikes made him subject to the three-strikes law and a candidate for a 25-years-to-life prison sentence.

The full opinion from the Third District Court of Appeal, which discusses California's standards for "a defendant who wishes to showthat a sentence is cruel or unusual under the state Constitution," can be found at this link.

June 3, 2009 at 01:52 PM | Permalink


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just for a dui, omg, totally unconstitutional

Posted by: federalist | Jun 3, 2009 2:02:34 PM

While this guy is certainly a candidate for a stiff sentence for repeat DUI, it seems ridiculous to use his past intentional crim history to give him a second murder like sentence for a crime with no mens rea. How does his prior sex offense in any way make his DUI more serious? DUI is illegal because it is per se dangerous, not because it is a moral failing. Otherwise it should have a mens rea of at least recklessness. Courts sure dont like child molesters though.
Prof, I have trouble sometimes figuring out what you mean by lenient sentences in DUI cases. Are you in favor of significant jail sentences for first time offenders?
In any case 27 years for a fourth DUI is way too much. I would think a max of 10 for the most ingrained serial DUIer's.

Posted by: KRG | Jun 3, 2009 5:31:42 PM

from the perspective of an outsider, California law is so fundamentally conceptually flawed, it is hard to know where to start. How can the existence of prior convictions turn a misdemeanor of DWI into a felony capable of triggering application of the three strike law without those prior convictions being elements of a substantive offense. Which, in my opinion, would then clearly violate double jeopardy principles contained in Brown v Ohio? ( which says a greater offense and lesser offense are the same offense and since the def has already been punished for the lesser offense of DWI, he can't be punished for the greater offense)

Also, what is considered unethical practice in NC seems to be commonly practiced in California. How can a judge or prosecutor choose to ignore a prior conviction, or reduce the significance of it, with respect to exercising discretion on whether a prior felony strike exists? This whole concept of 'wobblers" is totally alien to me and has to be unconstitutional. Only the legislature can decide if a crime is a felony or a misdemeanor.


bruce cunningham

Posted by: bruce cunningham | Jun 3, 2009 9:46:50 PM

Bruce, I believe the legislature gave the ADA or the judge the discretion. See the CSC opinion: People v STATUM (2002) (pdf) for some fundamentals including some discussion of double jeopardy when the judge possibly illegally sentenced as a misdemeanor after the defendant pleaded to a felony (the defendant had already completed his misdemeanor year sentence and was released, but the government wanted him sentenced for a Third Strike). The People appealed and the issue is if the People could appeal, but the opinion is a good overall discussion of the wobbler process.

Posted by: George | Jun 3, 2009 11:27:26 PM

George, I realize that the legislature gave the judge and DA the discretion. But I'm saying such delegation of a power exclusively within the province of the legislature is a violation of separation of powers and unconstitutional. This is what Apprendi is all about (and by the way what Marbury v Madison is all about) There are some things the legislature simply can't do, like saying that if we say something is not an element of a crime, then the Sixth amendment does not apply to its finding

bruce cunningham

Posted by: bruce cunningham | Jun 4, 2009 6:38:17 AM

California cannot afford to take care of this guy's room, board, and medical care for 25 years. A three judge panel has ordered the state to take care of those it has under lock and key. California just loves to lock people up for long sentences. Three strikes and your out has a good catchy ring to it. This is a state that deserves to be bankrupted for this folly.

Posted by: mpb | Jun 4, 2009 1:14:39 PM

Bruce, fascinating argument. I'm dense though. Are you saying the legislature does not have the authority to delegate the discretion to the executive and judicial branch? If so, that raises another question if I understand. Under Cunningham, is the discretion to charge as a felony or misdemeanor, because it is a finding of fact, subject to findings by a jury and only a jury?

Do I get it?

Posted by: George | Jun 4, 2009 1:39:58 PM

George, yes, you have it on the first question, but no, I don't think the decision as to whether certain conduct is a felony or a misdemeanor is a factual question to which the Sixth Amendment applies. That is a pure question of law.

write me at btcunningham@earthlink.net and we can continue the discussion. This post is getting pretty far down the line on the blog.

But this whole notion that I am advocating for is wrapped up in separation of powers, the Bill of Attainder clause and the fundamental idea that in America we don't have "customized crimes." That is, a crime does not have as an element who committed it.

bruce cunningham

Posted by: bruce cunningham | Jun 4, 2009 4:19:08 PM

I am a mom in California. My 26 year old son met a crazy woman some months ago, and she managed to turn him against his entire family, all his life long friends etc.

Last month he held up a fast food restaurant manager as she left the building with the deposits after a long weekend. He used a gun, no one was hurt, and he apparently had inside help-don't know much about that piece of the story.

Let me just that I do believe my son should do some time for this. That said, the police are not sure if they will be able to get the woman on anything. They are quite sure she was part of it, possibly driving the car, but definitely on the planning, and she is probably the one who had the inside contact. They are trying to link her through the phone records at this point.

He was seen on the surveillance tape (clear as day), in the place and following the manager out. This is the only one of our kids to ever get into trouble, but he has always been able to find it. His only other brush with the law however was as a juvenile, also in possession of a gun, but not using it in any way.

So here are my questions-

1. We have been told he is being charged with 3 strikes. Is this possible? I thought that was about repeat offenses. Can you really get 3 strikes all for the same crime?

2. He has not contacted us in any way- it has been 3 months since we heard from him. My understanding is that his Public Defender will no eve speak to us without our son directing him to do so. If he did, then I assume my son would be present, and if he is, then i KNOW he would insist on the woman being present. I think enough testimony from enough people who observed his very bizarre and out of character behavior which started after he was seeing her MIGHT help any defense in that she honestly has him mesmerized-she says jump and he does. It is a frightening thing to watch. He has not even been allowed by her to ever speak to anyone on the phone since they have been together without the phone being on speaker so she can hear the other person, and tell my son how to respond or not to. This includes his grandmother. IS there anything we can do to get this information to the Public Defender?

3. We cannot hire a criminal defense attorney for him, but what can we do to help?

Thanks for any and all help here.

Posted by: Tamara | Jul 1, 2009 5:06:17 PM

california seems to have overstepped legislation in thier struggle against the ever growing gang population out there,which is why i believe the 3 strikes law was intended to curb violent crimes and repeat offenders,unfortunantly many fall victim to 3 strikes and its one of those laws that was passed without really being thought out thoroughly and its hard to reverse a bad law best to take the time to include the laws the right way the first time

Posted by: ncpatriot | Nov 30, 2009 11:19:55 PM

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